Page 32 - AVN April 2017

BUSINESS
AFTER THE SEARCH
More on obscenity busts and 2257 inspections
YOU CAN BET THAT THE
INDICTMENT WILL NOT BE
IN YOUR (REASONABLY LIBERAL) DISTRICT, LIKE MIAMI, LAS VEGAS, SAN FRANCISCO OR LOS
ANGELES. NOPE, HISTORY TEACHES THAT IT WILL
BE IN PLACES WITH AN
EVANGELICAL JURY POOL.
LEGALESE | By Clyde DeWitt
THEY HAVE EXECUTED A SEARCH WARRANT ON YOUR PREMISES. They probably took your
computers. If you learn anything from this series of articles, back up your damn computers; and keep the
backup offsite—not in your house!
When it comes to prosecuting the adult industry, the government’s approach to this is
to get the big guy, even when the “big guy” isn’t all that big. And this process starts with
grand jury subpoenas.
A federal grand jury arises from the Fifth Amendment’s protection, requiring a grand
jury indictment for federal crimes: “a capital or otherwise infamous crime.” However, the
function of the grand jury has grown well beyond that.
The Supreme Court has long held that grand juries have very broad investigative powers,
and federal prosecutors love this. In the context of federal obscenity prosecutions, this is
what that means:
The target of one of these obscenity investigations generally will be the central person(s)
of the company under investigation. To meet that objective, the trick is for the grand jury
to issue subpoenas, prepared by the federal prosecutors, to employees, so as to zero in
on the identity and culpability of “Mister Big.” Now, the employees can claim their Fifth
Amendment right against self-incrimination—actually, “not to be a witness against himself”
(sic)—which they should do. Your gut reaction might be to send your company lawyer to
represent the employees, which would be a really bad idea. The reason is that your attorney
will be conflicted out when they come after you. Also, the employees might want to ask for
a public defender; alternatively, you could retain independent counsel for them. That way,
your regular attorney will be available to represent you in the long run. And that shouldn’t
be very long. As soon as you become aware of a potential prosecution, you should deploy
your attorney to negotiate with the prosecutors. The reason for that is, once there is an
indictment, the court for the most part takes control of the case, leaving less latitude in
resolving it.
Now, for you small folks, there may be no way for you to finance a defense. You will have
no choice but to request a public defender.
The employees will appear before the grand jury, hopefully with the advice of counsel
sitting outside the grand jury’s room. (Grand jury witnesses do not have the right to have
counsel with them in the grand jury room.) Presumably, the employees will invoke the Fifth
Amendment. However, that will not end things.
The next step in the process is that they will haul the employees before the judge—this
time they do have a right to counsel—and the judge will order them to testify before the
grand jury. The result of that is simple: they will testify. However, there are benefits to that
for the employees. If the government decides to prosecute an employee, they can’t use his/
her testimony or anything derived from it in the trial because of the compelled nature of
that testimony. If the government tries to do that, there is a thing called a Kastagar hearing,
derived from a Supreme Court ruling in a case of the same name, where the government has
a high burden of proving that none of the evidence that they will use against the employee
was learned from his/her testimony. (It’s not quite that simple but that’s the nub of it.)
Next, having assembled a case against you, the government will present all of the
evidence to a grand jury and seek an indictment, the traditional function of grand juries
under the Sixth Amendment. Federal grand juries have 23 members; it takes 12 to return
an indictment—a “true bill” as opposed to a “no bill.” (Historically, an
indictment was called a “bill of indictment.”) Government prosecutors’
batting average in obtaining indictments that they want is roughly 1.000,
or for you non-baseball fans, nearly a sure thing. You won’t get much
protection from the grand jury like the Sixth Amendment contemplated.
Now, as noted, hopefully your lawyer has been engaging in dialogue
with the lead prosecutor since the search. If so, it is likely that an
arrangement can be made for you to surrender and post bond. The
alternative is this: One Friday afternoon they will show up with an arrest
warrant. You will spend the weekend in jail, appearing before a federal
magistrate on Monday. Hopefully, you can post bond on the condition
that you appear in the place where the indictment was returned.
That leads to the venue issue. You can bet that the indictment will
not be in your (reasonably liberal) district, like Miami, Las Vegas, San
Francisco or Los Angeles. Nope, history teaches that it will be in places
with an evangelical jury pool; most likely somewhere in the Bible Belt, like
Oklahoma City, Tallahassee, Mississippi, etc. You get the idea. These are
not very porn-friendly places! (Although they consume quite a bit of it.)
It seems likely that many of the targets will be unable to finance a
defense after indictment—surely not the larger ones who will have
attorneys on call, the ones who will not need to know about public
defenders.
The federal public defenders are good but they are not experienced in
defending obscenity cases. And this is a plea from the author: The Free
Speech Coalition, financed by the big players, needs to create and finance
a team of experienced obscenity defense lawyers to assist the public
defenders, which is going to be a small group. Such a group can create a
bank of requested jury instructions, pretrial motions, briefs, and so on. If
not, federal defenders, as good as they are, will make some really bad law.
As to 2257 inspections, they are on hold for now, but be prepared for
them anyway for three reasons. First, the changed Supreme Court may
create rulings that may bring them back. Second, it appears that they still
can inspect with a warrant, even if you are a Free Speech member or live
in the Third Circuit (see last month’s article). Finally, as has been said
in this column many times before, if a minor slips through the cracks
and you get sued or, worse, charged with a child pornography violation,
compliance with 2257 is a potential defense.
Clyde DeWitt is a Las Vegas and Los Angeles attorney, whose practice has been focused on
adult entertainment since 1980. He can be reached at clydedewitt@earthlink.net. More
information can be found at ClydeDeWitt.com. This column is not a substitute for personal
legal advice. Rather, it is to alert readers to legal issues warranting advice from your personal
attorney.
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